Westword has obtained two DCSD documents, both dated February 23: a response to the preliminary-injunction motion and a call to dismiss a related lawsuit filed by Douglas County resident Robert C. Marshall, whose own legal representatives include Colorado Freedom of Information Coalition attorney Steve Zansberg.
In the response to the preliminary-injunction motion, lawyers Andrew D. Ringel, Matthew J. Haggerty and Joshua M. Raaz of Denver-based Hall & Evans LLC, an outside firm hired by the district to represent the board and the four named members, offer seven main reasons why the judge should side with them. Most are related to their contention that Peterson and his colleagues didn't violate the Colorado Open Meetings Law (COML) in the days leading up to the special hearing at which Wise was handed his walking papers. Here they are:
(1) Director Defendants are not proper defendants as they were acting in their official capacities as Directors and including them in the lawsuit in their official capacities is duplicative of the claim against the Board.Marshall's motion for a preliminary injunction suggests that the four board-member defendants, who currently form the panel's conservative majority, attempted to use a loophole to avoid violating the Colorado Open Meetings Law — getting together two at a time rather than assembling all at once — when engineering Wise's ouster.
(2) The encounters Director Defendants allegedly had with each other never constituted a "meeting" as defined under COML, meaning COML never was violated.
(3) Even if COML was violated, which Defendants deny, the Complaint has factual information sufficient to find a cure.
(4) Plaintiff is not entitled to a Declaratory Judgment in his favor on his first claim.
(5) Plaintiff’s second claim for relief contains only speculation and conclusory allegations which are not entitled to be taken as factual and which seek relief which cannot be imposed upon a local public body.
(6) The Board’s decision, through the majority vote of Directors at a duly noticed public meeting, to
terminate Superintendent Wise’s contract involves a nonjusticiable political question.
(7) The doctrine of separation of powers bars Claim Three of the Complaint.
During the February 4 meeting, it notes: "Defendants expressed their firm belief that they can lawfully meet two-at-a-time, in a series of gatherings to discuss public business (and even come to a collective decision and take collective action). Thus, they have indicated their clear intention to continue engaging in this practice." The motion adds: "Deliberately convening such 'less than a quorum' meetings in seriatim — a process that has derisively been referred to by other courts as a 'walking quorum' or 'constructive quorum' — purposefully to evade the requirements of public notice and transparency that is the hallmark of open meetings, is an affront to the spirit of the law, and to common sense."
Successfully taking the board members to task for these actions would be precedent-setting in this jurisdiction. But "while no Colorado appellate ruling has yet to address this duplicitous effort to circumvent the law," Marshall's motion continues, "multiple other jurisdictions have found that weaving together multiple two-person meetings to engage in collective discussion among the requisite number to constitute a 'meeting' is no different than if all the individuals had met simultaneously."
Should Holmes grant the preliminary motion, the abbreviated timeline announced this week to hire Wise's successor could be stopped, at least temporarily. But even if that doesn't happen, the Douglas County School District's expenses related to fighting the lawsuit will continue to accrue — and DSCD also appears to be on the hook for $247,500 to compensate Wise for being fired without cause.
Click to read the Douglas County School District motion to dismiss the lawsuit, and the response to the preliminary-injunction motion, as well as Robert C. Marshall v. Douglas County School Board, et al., and the original motion.
